RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:      DOCKET NUMBER:  98-00076 (Case 6)
            INDEX CODE:  131.00

            COUNSEL:  MR. GUY J. FERRANTE

            HEARING DESIRED:  YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

He receive direct promotion to the grade of lieutenant colonel  as  if
originally selected by the CY94A (11 October 1994) Central  Lieutenant
Colonel  Selection  Board  (P0594A);  and,  his  record  be  corrected
accordingly.
_________________________________________________________________

APPLICANT CONTENDS THAT:

He was unjustly  passed  over  for  promotion  to  lieutenant  colonel
(LtCol) by an inherently unfair and  flawed  Special  Selection  Board
(SSB) process which did not provide him with  a  fair,  equitable  and
accurate promotion reconsideration.

He received SSB consideration by the P0594A LtCol Selection Board with
a corrected Promotion Recommendation Form (PRF) in  January  1997  and
was subsequently nonselected.  He would have been among the  99.2%  of
in-the-promotion (IPZ) officers promoted  to  LtCol  by  the  original
selection board had his record not been defective, and had he received
a direct promote “DP” promotion recommendation from his  senior  rater
on the original PRF.  As a result of these “faults” in his record  and
faulty selection boards, direct promotion is the only viable option.

In  support  of  his  request,  counsel  submits  a  legal  brief  and
additional  documents  associated  with  the  issues  cited   in   his
contentions (Exhibit A).

_________________________________________________________________

STATEMENT OF FACTS:

Information extracted from the Personnel Data System (PDS) reveals the
applicant’s Total Active Federal Commissioned Service Date (TAFCSD) as
30 May 1979.  At the  time  the  application  was  submitted,  he  was
serving on active duty in the grade of major, with an  effective  date
and date of rank of 1 July 1990.

The applicant was nonselected for promotion to lieutenant  colonel  by
the CY94A (P0594A) central selection board.  Thereafter, three  errors
in the applicant's record were discovered: (1) the duty title  on  his
December 2, 1993, OPR was incorrect; (2) his official record contained
a preliminary "draft" of his January 26, 1992 OPR, and (3) an award of
the  Air  Force  Commendation  Medal  was  omitted  from  the  Officer
Selection Brief.  The Evaluation Report Appeal Board (ERAB)  corrected
the first two errors.  The third  was  corrected  through  the  AFBCMR
process.  The applicant was also granted SSB  reconsideration  by  the
CY94A Lieutenant Colonel Selection Board.

During the regular promotion cycle, the applicant received a "Promote"
recommendation on his Promotion Recommendation  Form  (PRF)  from  his
senior rater.  After the aforementioned corrections were made  to  the
applicant's record, his senior  rater  reconsidered  and  revised  the
promotion recommendation he submitted when the applicant initially met
the P0594A central selection board and awarded him a DP for the P0594A
special selection board (SSB).  The applicant  was  then  reconsidered
for promotion by that SSB, which convened on January 13, 1997, but was
not recommended for  retroactive  promotion,  notwithstanding  the  DP
recommendation in his selection folder.

Applicant's OPR profile, commencing with the  report  closing,  17 May
1991 follows:

            Period Ending    Evaluation

              17 May 91      Meets Standards (MS)
              26 Jan 92              MS
              26 Dec 92           MS
            #  2 Dec 93           MS
               2 Dec 94           MS
            ## 2 Dec 95           MS
            ###2 Dec 96           MS
               2 Dec 97           MS

# Top report at  the  time  he  was  considered  and  nonselected  for
promotion to  lieutenant  colonel  by  the  CY94A  Central  Lieutenant
Colonel Board, which convened on 11 October 1994.

## Top report at the  time  he  was  considered  and  nonselected  for
promotion to  lieutenant  colonel  by  the  CY96C  Central  Lieutenant
Colonel Board, which convened on 8 July 1996.

The applicant  was  reconsidered  and  nonselected  for  promotion  to
lieutenant colonel by an SSB for  the  CY94A  selection  board,  which
convened on 13 January 1997.

### Top report at the time  he  was  considered  and  nonselected  for
promotion to  lieutenant  colonel  by  the  CY97C  Central  Lieutenant
Colonel Board, which convened on 21 July 1997.

Information maintained in the Personnel Data System (PDS) reveals that
the applicant had an established date of separation  (DOS)  of  31 May
1999.  He retired on 1 June 1999 in the grade of major, with  a  total
of 20 years and 1 day of active service.

_________________________________________________________________

AIR FORCE EVALUATION:

The Selection Board Secretariat, HQ AFPC/DPPB,  stated  they  disagree
with counsel’s contention  that  the  special  selection  board  (SSB)
process is unfair in that the use of benchmark records from  the  gray
zone from the central board creates a higher  standard  for  selection
than that for the central board.  Because the  benchmark  records  are
very similar in quality, it is not unusual to have some  inversion  in
the benchmark order of merit (OOM) created by the SSB.   Whenever  the
inversion is of a nature that a nonselect  benchmark  record  receives
the highest score by the SSB and the consideree's record receives  the
same score or even the second  highest  score,  i.e.,  beats  all  the
select benchmarks, the nonselect benchmark record and the consideree's
record are returned to  the  board  members  for  rescoring.   If  the
consideree's record scores higher than the  nonselect  benchmark,  the
consideree will be a select.  Regardless of the situation, SSB members
are not informed which record is a benchmark record  or  a  consideree
record.

DPPB indicated that counsel’s statement "that there  was  no  singular
cut-off for the board; only individual cut-offs  for  each  individual
panel of the board" is incorrect.  On  the  board  in  question,  CY94
Central Lieutenant Colonel Board, the aggregate gray zone  method  was
in effect.  Therefore, each panel's gray zone was aggregated  to  form
one gray zone for the entire board to resolve.  After that resolution,
the benchmark records were subsequently identified  for  future  SSBs.
As to the court cases cited by counsel, DPPB stated that they  pertain
to selection boards conducted in the 1980s and have  no  applicability
to this application.

As to the cited talking paper dated 7 Jan 84 and counsel’s  suggestion
that the selection of benchmark records was  faulty,  DPPB  disagrees.
As this talking paper was accomplished 14 years ago, they  cannot  say
with any great certainty what the author meant in the  verbiage  which
was used.  However, DPPB thinks it refers to not using anomaly records
as benchmarks.  A search of DPPB files revealed a  subsequent  talking
paper on the same subject  which  was  written  31  Mar  86  and  more
accurately conveys their criteria  for  selecting  benchmark  records.
However, it should  be  noted  that  even  this  talking  paper  still
addressed panel gray resolution not the aggregate gray resolution used
on the board in question.  Despite the verbiage which was used in  the
7 Jan 84  talking  paper,  DPPB’s  current  procedures  for  selecting
benchmark records have been unchanged over the years and are  in  full
compliance with applicable guidelines.

In summary, it is DPPB’s opinion  that  this  application  is  without
merit and they recommended it be disapproved.  A complete copy of this
evaluation is appended at Exhibit C.

The Appeals and SSB Branch, HQ AFPC/DPPPA, reviewed  this  application
and recommended denial.  DPPPA stated that absent  clear-cut  evidence
the applicant would have been  selected  by  the  P0594A  board,  they
believe a duly constituted board comprised of senior officers  is  the
most appropriate method of determining the  applicant's  potential  to
serve in the next higher grade.  The  board's  prerogative  to  do  so
should not be usurped except under extraordinary  circumstances.   The
applicant's circumstances are not extraordinary.  Further, to grant  a
direct promotion would be unfair to all other  officers  who  competed
for promotion to lieutenant colonel  by  the  P0594A  board  and  were
nonselected.  DPPPA contends that had the applicant been a selectee by
either the original board or one of his subsequent SSB considerations,
he would not consider the promotion process illegal.  Further,  direct
promotion of the applicant would circumvent the competitive nature  of
the Air Force promotion  process.   DPPPA  stated  the  applicant  has
failed to prove he did not receive full and fair consideration by  the
original and subsequent P0594A selection boards.

DPPPA asserts that even if the applicant were to prove  the  promotion
system illegal, they do not understand  how  this  correlates  to  his
promotion status.  If the boards were found to be illegal, the  remedy
would not be to promote the  applicant.   A  reaccomplishment  of  the
boards would be the only logical remedy.  Again, as repeatedly  stated
in the past, DPPPA finds the often used compilation of memorandums and
letters included in  the  applicant's  appeal  package  to  be  wholly
without merit.  DPPPA  concurs  with  the  advisory  opinion  from  HQ
AFPC/DPPB and recommended the applicant’s request for direct promotion
be denied.

DPPPA addressed the additional statements in counsel's brief, which in
their  opinion  have  no  relevance  to  the   applicant's   promotion
considerations or request for direct promotion.

      (1)   On page 7 of the brief, footnote 4  states  the  applicant
was  informally  advised  that  no  officers  were  recommended   (for
promotion) by the  January  1997  SSB.   In  fact,  10  officers  were
recommended for promotion by the January 1997  SSBs.   None,  however,
were from the CY94A lieutenant colonel board.

      (2)   In attachment 7, the  applicant  states  he  was  told  13
records were meeting his lieutenant colonel SSB during the week of  13
Jan 97.  DPPPA has been unable to identify who may have given him  the
information.  The facts are that the CY94A Lt Col SSB  (primary  zone,
i.e., in- and above-the-promotion zone) considered 12 records.  Of the
12, 10 were benchmark records  and  2  were  considerees.   As  stated
above, neither  consideree  was  recommended  for  promotion.   It  is
possible that there was a third  consideree  who  may  have  withdrawn
his/her record from consideration prior to the board convening date  -
that could account for the "13 records”.

A complete copy of this evaluation is appended at Exhibit D.

The Staff Judge Advocate, HQ  AFPC/JA,  stated  that  the  applicant's
primary assault in this application for relief is upon the  Air  Force
implementation of the SSB process itself.  As to the technical aspects
of this issue, JA defers to, and concurs with, the comprehensive  DPPB
advisory opinion.  Suffice it to say, most of the applicant's argument
is unsupported supplication that hardly establishes the  existence  of
any prejudicial error.  The closest the applicant comes  to  proof  is
the statistical data he  submitted  (Atch  3)  relating  to  the  high
percentage (99.2%) of individuals with  DP  recommendations  who  were
promoted to lieutenant  colonel  during  the  CY94  central  selection
board.  The applicant believes that given his record (master's degree,
recent  decorations,  command  experience,  etc.),  he  was  otherwise
competitive for promotion upon receiving the DP  recommendation  after
his records were corrected.  He believes,  and  has  stated,  that  he
would have been  one  of  the  99.2%  promoted  by  the  CY94  central
selection board, but for the errors in his records.  He  reasons  that
since he was not selected by the SSB, it could  only  mean  that  SSBs
operate  under  different,  higher  standards  than  do  the   central
selection boards.  He further concludes that since  the  SSBs  operate
under different (and more selective) standards, he cannot get  a  fair
or equitable reconsideration for promotion.

In response, JA notes first that a promotion recommendation, be  it  a
DP or anything else, is just that -  a  promotion  recommendation.  It
does not guarantee promotion and is but one factor that a  board  will
consider in examining a member's entire record  to  determine  who  is
best qualified.  Second,  applicant  has  failed  to  acknowledge  the
reality that a DP recommendation given as  part  of  the  "correction”
process is not necessarily the same as a DP given in due course during
the regular promotion recommendation process.  More  importantly,  the
fact  that  applicant's  corrected  record  garnered  a  DP   in   the
corrections process does not mean (nor does it have any bearing on the
issue) that had his record been correct to begin with, he  would  have
been assured a  DP  in  the  first  instance.   In  that  environment,
applicant would have had to compete for a limited number of  available
"real world" DPs, whereas the DP he ultimately received was a  virtual
"freebie."  In the correction process, an individual is not  competing
with anyone else for a  limited  number  of  DPs.   The  DPs  are  not
controlled, and giving a DP to an individual does  not  take  it  away
from anyone else; i.e., a senior rater loses nothing by awarding  such
a DP because it is not at someone else's expense.  In other words,  it
is much easier to get a DP as part of the correction process  and,  as
such, it cannot be expected to carry the weight of a DP given  in  the
normal course.  In the end, the fact that an officer, like  applicant,
competed at an SSB  with  a  DP  recommendation  and  was  nonselected
reveals that the board conscientiously considered all the records  and
obviously accorded the "DP" recommendation  the  weight  it  deserved;
they did not merely rubber stamp the record for selection  because  it
contained a "DP" recommendation.  Such conscientious  deliberation  is
precisely  the  board's  statutory  duty.   In  the  end,  applicant's
nonselection does not evidence an illegality or shortcoming  with  the
special selection board process employed by the Air Force, but  rather
reflects the fact that applicant's corrected record, even  with  a  DP
recommendation, was simply not strong enough  to  beat  the  requisite
benchmark records (none of  which  presumably  had  DPs)  and  warrant
selection.

JA stated that the Air Force cannot perfectly recreate  the  promotion
process, nor is it required to do so by law as the applicant seems  to
imply.  What the Air Force is required to do, and what it has done  in
this case, is create a virtual reality in which the applicant is given
another look to see if correcting his  records  would  have  made  any
difference in the promotion process.   In  this  case,  the  applicant
competed against benchmark records which were  actually  evaluated  in
the CY94 central selection board.  The governing  statute,  10  U.S.C.
628(a)(2), does not prescribe a particular procedure nor method to  be
used in operating SSBs.  In JA’s view, the procedure selected  by  the
Air Force represents a legitimate  exercise  of  personnel  management
authority that is not inconsistent with  the  governing  law,  and  in
fact, fully comports with the requirement that an officer's "record be
compared with a sampling of the records of those officers of the  same
competitive category who were recommended  for  promotion,  and  those
officers who were not recommended for promotion,  by  the  board  that
should have considered him."  The burden is on the applicant to  prove
otherwise, and he has failed to do so.

As to the request for direct promotion, both  Congress  and  DOD  have
made clear their intent that  errors  ultimately  affecting  promotion
should be resolved through the use of special selection  boards.   Air
Force policy mirrors that position.  In that regard, where  many  good
officers are competing for a limited number of  promotions,  only  the
best officers can be promoted.  Without access to  all  the  competing
records  and  an  appreciation  of  what  those   records   mean,   an
appreciation gained from years of military experience, JA continues to
believe the practice of sending cases to SSBs is the fairest and  best
practice.  For the past (and hopefully in the future)  the  BCMR  will
consider direct promotion only in the most extraordinary circumstances
where SSB consideration has been deemed to be totally unworkable.  The
applicant's case clearly does not fall into that category.

Finally, even if  JA  was  to  assume  arguendo,  that  applicant  has
established an error that an SSB could not remedy (a notion JA  firmly
rejects), it is quite another matter to directly  promote  him.   That
would presuppose that applicant was indeed one of those best qualified
to be promoted.  Applicant has competed at several different promotion
boards (including at the original central board,  where  approximately
1/3  of  those  officers  like  applicant   who   received   "promote"
recommendations were selected) and if, indeed, his record  were  truly
that deserving, he could have - and would have  -  been  selected  for
promotion.

JA  is  convinced  that  the  Air  Force's  evaluation  and  promotion
processes are legal and fundamentally  fair.   Moreover,  it  is  JA’s
opinion that the applicant has failed to present relevant evidence  of
any error  or  injustice.   For  these  reasons,  JA  recommended  the
application be denied.

A complete copy of this evaluation is appended at Exhibit E.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant, through counsel, expressed his strenuous  objection  to
the consideration of any factual and/or procedural representations  by
HQ AFPC that are undocumented and thus amount  to  no  more  than  the
convenient, unsworn "spin" of the author.

Counsel reviewed the advisory opinions and  indicated  that  the  most
telling feature of the advisory opinions is the  issue  that  none  of
them address directly the fact that SSB’s apply  a  manifestly  higher
standard than central selection  boards  by  recommending  only  those
officers who, upon reconsideration,  outscore  all  of  the  nonselect
benchmarks and equal the score  of  at  least  one  select  benchmark.
There is no evidence to  support  DPPB’s  claim  that  rescoring  ever
occurs.  Even by DPPB’s description, there is a rescoring  only  if  a
nonselect benchmark scores the highest and the consideree either  ties
that score or comes in second.  The problem  is  the  higher  standard
that must be met in order to be selected, regardless of whether  there
is any rescoring in applying that standard.

Counsel indicated that DPPB offered  a  1986  Talking  Paper  that  it
claimed “more  accurately”  conveys  AFPC’s  procedure  for  selecting
benchmark records  than  the  1984  Talking  Paper  submitted  by  the
applicant.  The applicant is not  satisfied  with  what  is  evasively
termed a “more accurate” description, and this  Board  should  not  be
either.   Counsel  recommended  that  the   Board   demand   and   get
authoritative evidence of the procedures that were utilized by the SSB
the  applicant  met.   Even  accepting  the  1986  Talking  Paper   as
describing the applicable guidelines  does  not  help  AFPC,  however,
because it still introduces subjectivity that distorts  the  benchmark
selection process.

Counsel stated that the advisory opinions do  nothing  to  convince  a
reasonable reader that  the  applicant  received  fair  and  realistic
reconsideration by the SSB.  That  SSB  applied  a  manifestly  higher
standard than the regular  promotion  board.   It  utilized  undefined
procedures, both in  applying  that  standard  and  in  selecting  the
benchmarks against which the applicant competed.  The end  result  was
SSB  consideration  at  which  the  applicant  had  a   markedly   and
demonstrably lower chance of being selected than would have  been  the
case at the CY94A central selection board.

With regard to the issue of direct  promotion,  DPPPA  argues  that  a
selection board’s “prerogative”  to  judge  which  officers  are  best
qualified  for  promotion  “should  not  be   usurped   except   under
extraordinary circumstances.”  Applicant submits  that  “extraordinary
circumstances” exist when,  by  the  Air  Force’s  own  admission,  an
officer cannot receive fair and accurate promotion  recommendation  by
an SSB.

Counsel stated that in prior proceedings,  the  Air  Force  determined
that the applicant’s record should have included a PRF bearing a  “DP”
recommendation when the CY94A central selection board  considered  it.
His PRF  was  upgraded  to  a  “DP”  and  he  was  afforded  promotion
reconsideration  by  SSB.   JA  now  maintains  that  the  applicant’s
nonselection by the SSB can be explained “by the  reality  that  a  DP
recommendation given as  part  of  the  ‘correction’  process  is  not
necessarily the same as a DP given in due course  during  the  regular
promotion recommendation process.”   There  are  only  three  possible
conclusions: (1) the record correction process does not  work  because
the applicant did not receive the full and fitting relief to which  he
was  entitled  under  10  U.S.C.,  Section  1552;  (2)  the  promotion
reconsideration process does not work because the  applicant  did  not
receive the faithfully accurate promotion reconsideration contemplated
by 10 U.S.C., Section 625 and AFI 36-2501; or (3) neither  the  record
correction nor the promotion reconsideration process work.

Counsel referenced a prior case (AFBCMR Docket No. 89-00431) where the
Board directly promoted an officer.  Counsel  asserts  that  the  very
same rationale used to promote the referenced officer applies  to  the
applicant’s case.  When the record of an officer having a 99.2% chance
of selection cannot be corrected to allow full and fair  consideration
by an SSB, “extraordinary circumstances” exist.  The Board must direct
the applicant’s promotion because there is no other means to that end.

In further support of his request, the applicant submits letters  from
his current commanders.

Counsel’s response and the additional evidence of support are appended
at Exhibit G.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, the  Officer  Promotions  Branch,  HQ
AFPC/DPPPO, provided an analysis of the applicant’s record as  it  met
the CY94 selection board, with the approved corrections.  DPPPO stated
that the applicant’s written record is slightly below average relative
to his peers, with some notable detractors--weak recent  OPRs,  slight
lack  of  depth/breadth,  no  leadership  test,  relative  recent  UPT
elimination.  With a 45 percent opportunity for receiving a Definitely
Promote (DP) through the normal Management Level  allocation  process,
DPPPO does not believe the applicant’s record is comparable in quality
to  typical  DP  records  awarded   in   this   year   group   (1979).
Additionally, the PRF itself notably lacks PME and job recommendations
- omissions that, by themselves, send fairly strong adverse signals to
promotion boards…even with a DP recommendation.

A complete copy of this evaluation is appended at Exhibit H.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

Counsel reviewed the advisory opinion and indicated that the applicant
does not maintain that his  record  is  absolutely  perfect  in  every
conceivable respect.  The issue is whether the applicant’s  record  is
that of a highly  qualified  officer  who  should  already  have  been
promoted to the grade of lieutenant colonel (as Lt Gen F---, Maj Gen B-
--, Lt Gen (sel) T---, and Col H--- believe) or  the  “slightly  below
average” officer that the advisory writer purports to describe.   Even
a casual glimpse at the applicant’s record would  lead  any  objective
reader to wonder what record the advisory writer was looking at.   The
AFBCMR should afford  more  weight  to  the  opinions  of  senior  and
experienced officers who have seen the applicant in action than to the
out-of-step opinion of the advisory writer.

A complete copy of counsel’s response is appended at Exhibit J.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing  law
or regulations.

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to demonstrate the
existence of probable error or injustice. warranting favorable  action
on the applicant’s request for a Secretarial promotion to the grade of
lieutenant colonel.  The Board was persuaded by the evidence submitted
that the applicant has been the victim of an injustice.  We  recognize
that the applicant’s corrected record has been reevaluated by  a  duly
constituted special selection board (SSB) and he was a nonselectee for
promotion to lieutenant colonel.  In this respect, after reviewing the
applicant’s submission and the evidence of record, i.e., the  allusion
to “freebie” Definitely Promote (DP) recommendations, we have  serious
reservations concerning whether the applicant received full  and  fair
consideration for promotion by the SSB.  We have examined  applicant’s
record and did not find anything in his record that would allow us  to
believe he could not serve appropriately  in  the  higher  grade.   We
noted that the applicant’s P0594A Promotion Recommendation Form  (PRF)
was upgraded to a DP by the senior rater, with the concurrence of  the
MLEB president, based on corrections to the  applicant’s  records  and
new insight into his career record of  demonstrated  performance.   In
our  opinion,  had  the  senior  rater  been  properly  aware  of  the
applicant’s accomplishments, he would have awarded  the  DP  initially
and the applicant would have met the CY94A Central Lieutenant  Colonel
Selection Board with an  accurate  record.   At  the  CY94A  selection
board, 99.2% of individuals  with  DPs  were  promoted  to  lieutenant
colonel.  We do not find that the applicant’s record as corrected  was
below average as the Air Force states.   We  therefore  are  concerned
about the perception  of  the  SSB  process.   Additionally,  we  took
particular note of the statements provided from senior  officials  who
support promoting the applicant to the  grade  of  lieutenant  colonel
based  on  his  demonstrated  integrity,   leadership   and   superior
performance.  In view of the above, and having no  basis  to  question
the integrity of these senior officials, we believe the  applicant  is
the victim of an injustice by not  being  selected  for  promotion  to
lieutenant colonel.  We further believe that reasonable  doubt  exists
concerning the fairness of the SSB process as applied  in  this  case,
and this doubt should  be  resolved  in  favor  of  the  applicant  by
promoting him retroactively.  Under normal circumstances, we would not
usurp the promotion  selections  of  an  SSB;  however,  we  find  the
circumstances  of  this  case  to  be  extraordinary.   We   therefore
recommend that the applicant’s records  be  corrected  to  the  extent
indicated below.

_________________________________________________________________

THE BOARD RECOMMENDS THAT:

The pertinent military records of the  Department  of  the  Air  Force
relating to APPLICANT be corrected to show that:

            a.   He was selected for promotion to grade of  lieutenant
colonel  by  the  Calendar  Year  1994A  Central  Lieutenant   Colonel
Selection Board, which convened on 11 October 1994; and,  that  action
be initiated to obtain Senate confirmation.

            b.   Upon Senate confirmation, he be promoted to the grade
of lieutenant colonel with award of an appropriate date  of  rank  and
effective date of promotion.

            c.   He was released from active duty on 31 May  1999  and
retired on 1 June 1999 in the grade of lieutenant colonel rather  than
in the grade of major.
_________________________________________________________________

The following members of the  Board  considered  this  application  in
Executive Session on 11 March 1999 and 20 September  1999,  under  the
provisions of AFI 36-2603:

                  Mr. Thomas C. Markiewicz, Panel Chair
                  Mr. Gregory W. DenHerder, Member
              Mr. John E. Pettit, Member

All members  voted  to  correct  the  records,  as  recommended.   The
following documentary evidence was considered:

   Exhibit A.  DD Form 149, dated 5 Jan 97, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPB, dated 26 Mar 98, w/atch.
   Exhibit D.  Letter, HQ AFPC/DPPPA, dated 9 Apr 98.
   Exhibit E.  Letter, HQ AFPC/JA, dated 14 Jul 98.
   Exhibit F.  Letter, SAF/MIBR, dated 3 Aug 98.
   Exhibit G.  Letter from counsel, dated 2 Oct 98, w/atchs, and
               letter from applicant, dated 11 Jan 99, w/atchs.
   Exhibit H.  Letter, HQ AFPC/DPPPO, dated 29 Apr 99.
   Exhibit I.  Letter, AFBCMR, dated 18 May 99.
   Exhibit J.  Letter from counsel, dated 26 Jul 99, w/atchs.




                                   THOMAS C. MARKIEWICZ
                                   Panel Chair






MEMORANDUM FOR   THE EXECUTIVE DIRECTOR, AIR FORCE BOARD FOR CORRECTION OF
                   MILITARY RECORDS (AFBCMR)

FROM: SAF/MI

SUBJECT:    AFBCMR Case of Major APPLICANT, United States Air Force,
          Retired

      I have carefully considered all the circumstances of this case and do
not agree with the recommendation of the panel of the AFBCMR to promote the
applicant to the grade of lieutenant colonel (lt col) as though he had been
selected by the Calendar Year (CY) 1994A Central Lieutenant Colonel
Selection Board that convened on October 11, 1994, and retire him in the
higher grade effective June 1, 1999.

      Applicant was considered, but not selected, for promotion to the grade
of lt col by the CYs 94A and 96C Central Lieutenant Colonel Selection
Boards.  Subsequent corrections to his records resulted in, among other
things, the award of a “Definitely Promote” (DP) promotion recommendation
and reconsideration for promotion to lt col by a Special Selection Board.
He was considered but not selected for promotion by the SSB that convened
on July 21, 1997, and retired for length of service in the grade of major
on June 1, 1999.

      In applying to the AFBCMR, the applicant contends that he was unjustly
passed over for promotion to lt col by an inherently unfair and flawed SSB
process which did not provide him with a fair, equitable, and accurate
promotion reconsideration.  He further contends that he would have been
among the 99.2% of the in-the-promotion-zone (IPZ) officers promoted to lt
col by the original selection board had his record not been defective, and
had he received a “DP” promotion recommendation from his senior rater on
the original PRF; and that as a result of these “faults” in his record and
faulty SSB process, direct promotion is the only viable option.  Counsel
also references a prior AFBCMR case and asserts that the very same
rationale used to promote this officer applies to the applicant’s case.

      After reviewing the applicant’s submission and the evidence of record,
i.e., the allusion to “freebie” “DP” recommendations by AFPC/JA, the AFBCMR
panel has serious reservations whether the applicant received full and fair
consideration for promotion by the SSB.  They found nothing in the
applicant’s record that would allow them to believe he could not serve
appropriately in the higher grade.  They also note that his PO594A PRF was
upgraded to a “DP” by the senior rater, with the concurrence of the MLEB
president, based on corrections to his records and new insight into his
career record of demonstrated performance.  Lastly, based on its own
personal assessment, the Board did not find that the applicant’s record, as
corrected, was below average as the Air Force states.  Because of these
observations and the solid support from the applicant’s rating chain, the
Board believes that reasonable doubt exists concerning the fairness of the
SSB process as it applied in this case.  I disagree.

      It is regrettable that the applicant’s record was not correct when
considered by the original selection board, however, it was properly
considered for promotion to Lt Col with a corrected record by an SSB.
These boards, convened pursuant to 10 USC, Section 628, are charged with
the responsibility of considering the record of the officer as his record
would have appeared to the board that considered him.  That record is
compared with a sampling of the records of those officers of the same
competitive category who were recommended for promotion, with scores just
above the original quota line, and those officers who were not recommended
for promotion, with scores just below the original quota line, by the board
that considered him.  The members of the SSBs also take an oath that they
will perform their duties as members of the board without prejudice or
partiality.  In addition, unlike the AFBCMR, the SSB members have access to
the benchmark records of the original board and, as a consequence, can make
a more precise judgment of an officer’s promotability.

      Applicant’s counsel asserts, essentially, that Air Force SSBs do not
replicate the competition of regular promotion boards; that applicant had
only a paltry fraction of the chance of being promoted compared to the
opportunity he would have had had his corrected records been considered by
a regular selection board; and that he has not received the fair,
equitable, and legal promotion consideration to which he is entitled.  I do
not find these uncorroborated assertions sufficiently compelling, however,
to override the rationale provided by AFPC/JA concerning the propriety of
the SSB process or the fairness of the applicant’s consideration for
promotion.  Admittedly, the characterization of an after-the-fact “DP” as a
virtual “freebie” and that it is not necessarily the same as a “DP” given
in due course during the regular promotion recommendation process is
troublesome.  Nonetheless, because AFPC/JA is not the office of primary
responsibility (OPR) for the officer promotion process, I am not persuaded
that the applicant did not receive a full and fair consideration by the
SSB.  I also do not find the statistical data indicating that had the
applicant received a “DP” recommendation for the original selection board,
his selection rate would have been 99.2% sufficiently compelling to
conclude that the relief sought should be granted.  The statistics indicate
that the applicant’s probability of selection for promotion by the original
selection board would have been significantly higher had he received a “DP”
during the original process.  On the other hand, the statistics
unequivocally establish that the receipt of a “DP” does not guarantee
selection for promotion.  Therefore, other than speculation based on
statistical data and the unwavering support from officers in his rating
chain (which is not at all uncommon), the applicant has submitted no
corroborative evidence to show that he did not receive a full and fair
consideration for promotion by the duly constituted SSB.  More
significantly, he has provided no evidence to indicate that the SSB members
did not perform their sworn duty.

      In view of the foregoing and in the absence of corroborative evidence
of impropriety in the SSB process or that the SSB members did not perform
their sworn duty, I find no compelling reason to grant the applicant’s
request.  Accordingly, it is my decision that the requested relief should
be denied.  Regrettably, under the Air Force’s competitive officer
promotion system, many officers who could serve successfully at the next
higher grade are not deemed “best qualified” for promotion once the quota
is applied.

      In arriving at my decision, I have also reviewed the prior AFBCMR case
that counsel refers to as being similar and find it clearly distinguishable
from the applicant’s case.  This applicant, unlike the applicant, submitted
persuasive evidence that he had been unfairly deprived of an opportunity to
become competitive for promotion because of factors over which he had no
control.